Citation Nr: 0801864
Decision Date: 01/17/08 Archive Date: 01/29/08
DOCKET NO. 04-28 545A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a right knee
disability.
2. Entitlement to service connection for a left knee
disability.
3. Entitlement to service connection for asthma.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The veteran had active duty for training (ACDUTRA) from July
1978 to November 1978, and served on active duty from August
1979 to October 1986.
These matters come to the Board of Veterans' Appeals (Board)
on appeal from an October 2002 rating decision that, in part,
denied service connection for a right knee disability, a left
knee disability, and for asthma. The veteran timely
appealed.
The issue of service connection for asthma is addressed in
the REMAND portion of the decision below and is REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. Osteoarthritis of the right knee was not demonstrated
within the first post-service year, and the competent
evidence is against linking any current right knee disability
to a disease or injury during active service.
2. Osteoarthritis of the left knee was not demonstrated
within the first post-service year, and the competent
evidence is against linking any current left knee disability
to a disease or injury during active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right knee
disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A,
5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.307, 3.309 (2007).
2. The criteria for service connection for a left knee
disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A,
5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.307, 3.309 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held that
proper VCAA notice should notify the veteran of: (1) the
evidence that is needed to substantiate the claim(s); (2) the
evidence, if any, to be obtained by VA; (3) the evidence, if
any, to be provided by the claimant; and (4) a request by VA
that the claimant provide any evidence in the claimant's
possession that pertains to the claim(s).
In an April 2002 letter, the RO notified the veteran of
elements of service connection, and the evidence needed to
establish each element. These documents served to provide
notice of the information and evidence needed to substantiate
the claims. This letter notified the veteran of what
evidence he was responsible for obtaining, and what evidence
VA would undertake to obtain. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b). VA informed him that it would make
reasonable efforts to help him get evidence necessary to
support his claims, particularly, medical records, if he gave
VA enough information about such records so that VA could
request them from the person or agency that had them. The
letter also essentially put him on notice to submit
information or evidence in his possession.
The veteran did not receive notice of the process by which
initial disability ratings and effective dates are
established. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Any defects as to the provision of notice regarding
disability ratings and effective dates are rendered moot as
service connection is not warranted for either knee
disability.
There is no indication that any additional action is needed
to comply with the duty to assist the veteran. The RO has
obtained copies of the veteran's service medical records and
outpatient treatment records. The veteran has not
identified, and the record does not otherwise indicate, any
existing pertinent evidence that has not been obtained.
The veteran has not been afforded an examination for his
claimed knee disabilities. In any event, VA is obliged to
provide an examination when the record contains competent
evidence that the claimant has a current disability or signs
and symptoms of a current disability, the record indicates
that the disability or signs and symptoms of disability may
be associated with active service; and the record does not
contain sufficient information to make a decision on the
claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of
a link between current disability and service must be
competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir.
2003). As will be discussed below, the competent evidence
fails to establish that claimed knee disabilities may be
related to service.
Given these facts, it appears that all available records have
been obtained.
There is no further assistance that would be reasonably
likely to assist the veteran in substantiating the claims.
38 U.S.C.A. § 5103A(a)(2).
II. Analysis
Applicable law provides that service connection may be
granted for disability resulting from personal injury
suffered or disease contracted during active military, naval,
or air service, or for aggravation of a pre-existing injury
suffered, or disease contracted, during such service. 38
U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2007). The term "active military, naval, or air service"
includes active duty, and "any period of active duty for
training during which the individual concerned was disabled
or died from a disease or injury incurred or aggravated in
line of duty, and any period of inactive duty training during
which the individual concerned was disabled or died from an
injury incurred or aggravated in line of duty." 38 U.S.C.A.
§ 101(24) (West 2002 & Supp. 2007); 38 C.F.R. § 3.6(a)
(2002).
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004),
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see
also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may be presumed for certain chronic
diseases, such as arthritis, which become manifest to a
compensable degree within a prescribed period after discharge
from service (one year), even though there is no evidence of
such disease during the period of service. 38 U.S.C.A.
§§ 1112, 1113 (West 2002); 38 C.F.R. 3.307, 3.309 (2007).
The Board notes that service medical records contain
complaints of and treatment for various ailments, to include
an inguinal hernia and a low back injury, but are completely
negative for complaints or findings of any knee injury or
knee pain. And, no knee disability was found in service.
Private medical records, dated in November 1994, include a
notation of a knee injury in 1985.
Post-service medical records reflect that, among other
things, the veteran began running and developed pain and
associated swelling in both knees, which have persisted since
January 1996. At that time he reported no previous trauma to
either knee. X-rays revealed increased density in the region
of the right tibial tuberosity, possibly related to an old
stress fracture injury. In June 1996, the impression was
synovitis of the knees. There have been no reports of
symptomatology between the time of service, and these initial
findings.
In March 1998, the veteran was diagnosed with medial meniscal
tear of the right knee. Records reflect that he underwent a
surgical fixation of the right knee in February 2000.
Although the veteran was diagnosed with moderate bilateral
knee osteoarthritis in December 2000, there is no evidence of
arthritis either manifested in service or within the first
post-service year, to warrant service connection on the basis
of presumptions referable to chronic diseases.
Private medical records, dated in February 2001, include a
notation that the veteran was involved in a motor vehicle
accident in September 1993, in which he severely injured his
right knee.
Records reflect that the veteran underwent a left total knee
arthroplasty in December 2003, and a right total knee
arthroplasty in March 2004.
In August 2004, the veteran's orthopaedic surgeon, Daniel G.
Kalbac, M.D., reported that the veteran complained of having
bilateral knee pain since the early 1980's while stationed in
Germany in service. The veteran reportedly had his knees
looked at by physicians in Germany, but no surgical
intervention of either knee was warranted at the time.
Dr. Kalbac opined that the veteran's osteoarthritis at age 45
is consistent with having previous knee injuries while in
service in the late 1970's or early 1980's as reported by the
veteran.
Also received in August 2004 was a brief statement by a
rheumatologist, Richard L. Chang, M.D., opining that the
veteran's work in the military contributed to his knee
problems. The veteran had reported that his knee problems
initially began in service.
While the veteran is competent to offer statements of first-
hand knowledge that he experienced knee pain in service, as a
lay person he is not competent to render a probative opinion
on a medical matter, such as the onset of osteoarthritis or
of medical diagnosis or causation. See Bostain v. West, 11
Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski,
2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet.
App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge").
In fact, the veteran's statements about knee pain in service
are outweighed by the absence of any clinical findings or
notation of knee injury in service medical records.
The Board is not persuaded by the opinions of Dr. Kalbac and
Dr. Chang. For one thing, neither doctor reviewed the
veteran's service medical records. As noted above, the
service medical records contain no notation of any knee
problems to support either opinion. In fact, Dr. Chang's
opinion is rather cursory, and is six lines in length. See
also Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Reonal v.
Brown, 5 Vet. App. 458, 460-61 (1993) (essentially provide
that opinions which appear to have been based entirely on the
history provided by the veteran, and not supported by the
objective evidence of record, carry little probative weight.)
While the veteran contends that disabilities of each knee
have their onset in service, the competent evidence is
against linking any current knee disability with injury or
disease in service, and against establishing the onset of the
disabilities in service.
Because the competent evidence fails to establish a link
between a currently shown disability and service, and there
is no evidence of a knee disability in service or
osteoarthritis within the first post-service year, the weight
of the evidence is against each of the claims. As the weight
of the competent evidence is against the claims, the doctrine
of reasonable doubt is not applicable. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49, 53-56 (1990).
Hence, the weight of the evidence is against each of the
claims, and against the grant of service connection for any
knee disability.
ORDER
Service connection for a right knee disability is denied.
Service connection for a left knee disability is denied.
REMAND
As noted above, VA is obliged to provide an examination when
the record contains competent evidence that the claimant has
a current disability or signs and symptoms of a current
disability, indicates that the disability or signs and
symptoms of disability may be associated with active service;
and the record does not contain sufficient information to
make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West
2002). The evidence of a link between current disability and
service must be competent. Wells, 326 F.3d at 1383.
The veteran contends that service connection for asthma is
warranted on the basis that the onset of the disability began
in active service.
The medical record demonstrates that asthma was diagnosed in
November 2004.
The Board notes that service medical records in the claims
file include some Army National Guard treatment records, but
no report of the veteran's entry examination for his period
of active duty from August 1979 to October 1986. Records
show that he was treated for asthma in November 1979,
December 1982, May 1983, March 1984, May 1984, May 1985, and
February 1986.
The presumptions of soundness and aggravation do not apply to
periods of ACDUTRA (active duty for training) or INACDUTRA
(inactive duty for training).
Under these circumstances, the Board finds that the AMC
should make an attempt to obtain the veteran's entry
examination (if one was conducted) for his period of active
duty from August 1979 to October 1986. This record is
essential to the veteran's claim for service connection for
asthma. See 38 U.S.C.A. § 5103.
The Board also finds that an examination is needed to
determine whether any current asthma had its onset during
service or is related to his active service. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c)(4) (2007).
Accordingly, the case is REMANDED to the AMC for the
following action:
1. The AMC should contact the veteran to
obtain names and addresses of all medical
care providers who treated the veteran
for asthma, since December 2004. After
securing the necessary releases, the RO
or AMC should obtain these records.
2. The AMC should undertake appropriate
action to obtain the veteran's service
medical records of his entry examination
for his period of active duty from August
1979 to October 1986. The AMC or RO
should send a copy of each of the
veteran's separation documents with the
request. All records and/or responses
received should be associated with the
claims file.
3. The veteran should be afforded a VA
examination to identify all current
disability underlying the veteran's
current complaints of asthma; and to
determine whether it is at least as
likely as not that any such disability
either had its onset in service, or is
the result of disease or injury incurred
or aggravated during service, to
specifically include the in-service
treatment for asthma on various
occasions.
The examiner should provide a rationale
for the opinions.
The veteran's claims file, to include a
complete copy of this REMAND, must be
provided to the examiner designated to
examine the veteran, and the report of
the examination should note review of the
claims file.
4. After completing the requested
actions and ensuring that all opinions
are of record, the AMC should
readjudicate the claim on appeal for
service connection for asthma. If the
benefits sought remain denied, the RO or
AMC must furnish a supplemental statement
of the case (SSOC), before returning the
case to the Board, if otherwise in order.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may
furnish additional evidence and/or argument.
See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v.
Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8
Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129,
141 (1992).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs